Delhi District Court
Pradeep Kumar Bajaj vs The State on 31 March, 2015
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0272582012
Criminal Revision Number : 119/2/14
FIR No. : 624/98
U/s : 420 IPC
PS : Connaught Place
Pradeep Kumar Bajaj
S/o Late Sh. Ram Avtar Bajaj
R/o B-27/92, D-47, Jawahar Nagar Colony,
Varanasi, UP. ...Revisionist/Petitioner
versus
The State
Govt. of NCT of Delhi. ...Respondent
Date of receipt of file in this Court : 05.03.2014
Date when arguments were heard : 25.03.2015
Date of order : 31.03.2015
ORDER
1 The present revision petition assails the impugned order dated 08.08.2012 passed by Ms. Jasjeet Kaur, Ld. MM, Patiala House Courts, New Delhi in case FIR No. 624/98, PS Connaught Place, U/s 420 IPC whereby the Ld. Trial court has directed to frame the charge u/s 420 IPC against revisionist/accused. 2 I have heard the rival submissions on behalf of Ld. Counsel for revisionist, CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 1 of 13 Ld. Addl. PP for the State on behalf of respondent and have also carefully perused the record including trial court record.
3 The Ld. Counsel for revisionist/accused argued that Ld. Trial court did not appreciate that Section 420 IPC was not at all made out against the revisionist and the prosecution case is lacking inherent ingredients of Section 420 IPC. He argued that there was no inducement on the part of revisionist because the Agency Agreement dated 23.01.1998 mentions that the officials of complainant company contacted the revisionist for helping the company in procurement of the orders and the revisionist never approached the complainant company on its own before signing of the above said agreement. He further argued that the said agreement was prepared by the complainant company and was sent to the revisionist at his house at Varanasi, UP. He contended that the complainant company i.e. DALMIA INDUSTRIES LIMITED has failed to place on record any documentary evidence to prove their case regarding alleged deal. He further argued that there are contradictions in the statement of the complainant in the complaint as well as the statement recorded u/s 161 CrPC. He argued that the revisionist/accused never approached/induced the complainant company at any point of time, rather the complainant company itself approached the revisionist. He contended that from the above said Agency Agreement, it is apparent that the complainant company had approached the revisionist with a request to become an agent of the complainant company for procuring orders from various departments, hence, there was no inducement given by revisionist to persuade the complainant to deliver to the revisionist a sum of Rs. 50 lacs as alleged in the complaint. He also referred to the said Agency Agreement dated 23.01.1998 between the complainant company and M/s BALABUX RAMAUTAR BAJAJ & CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 2 of 13 SONS and submitted that the revisionist is the proprietor of said M/s BALABUX RAMAUTAR BAJAJ & SONS and that the advance to be paid to the revisionist has itself been mentioned in the said agreement. He further contended that even otherwise the matter is only a civil dispute and in the said agreement, there is a clause for referring the matter for Arbitration under Indian Arbitration Act in case of any dispute between the parties. He contended that the complainant company instructed the revisionist from time to time to make a payment to one Sh. Shailendra Prakash i.e. agent/broker of the complainant company at Lucknow and immediately the revisionist paid him a total sum of Rs. 36 lacs on different occasions. He, however, admitted during the arguments that revisionist had obtained total sum of Rs. 50 lacs from the complainant company on different occasions. He thus argued that the Ld. Trial court committed an irregularity and illegality by directing the framing of charge u/s 420 IPC against revisionist/accused and prayed that the accused should be discharged in this case.
4 On the other hand, Ld. Addl. PP for the State/respondent argued that there is no material irregularity or illegality in the impugned order directing the framing of charge u/s 420 IPC against the revisionist/accused. He submitted that the presence of Arbitration Clause in the agreement does not bar the criminal prosecution and submitted that the civil remedy and criminal remedy are not mutually exclusive but are clearly coextensive and essentially differ in their content and consequence. He further argued that at the stage of framing of charge, the court has only to see the prima facie case and if the facts give rise to a grave suspicion against the accused then the court is within its right to frame the charge against the accused. He referred to the facts of the complaint dated CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 3 of 13 12.06.1998 made by one Sh. Vishnu B Sharma, Executive Director of the complainant company i.e. DALMIA INDUSTRIES LIMITED and argued that it has specifically been mentioned that the accused/revisionist approached the complainant company stating himself to be an Authorized Dealer of UP State Govt. assuring them that he had sufficient orders at hand on behalf of UP Govt. for the products in which the complainant company was dealing and he could give sufficient business to the company in the coming three months. He argued that in pursuant to the said assurance, the complainant company entered into an agreement with the accused/revisionist on 23.01.1998 and on his assurance and inducement, the complainant company paid initially Rs. 25 Lacs vide DD dated 28.01.1998 and the said advance was paid after the accused/revisionist allured the complainant company to meet his pocket expenses including travelling etc to enable him to procure the orders. He argued that further Rs. 25 lacs were given to him vide three different DDs for Rs. 9 lacs, Rs. 9 lacs and Rs. 7 lacs dated 29.01.1998 only upon assurance of accused that the said money was immediately required to procure orders worth Rs. 100 crores. He argued that the accused/revisionist kept on giving the false assurances to the complainant company that the file was in process, however, the complainant company later on learnt that the accused/revisionist had no document suggesting and in fact not even the initial proposal had been submitted by him to any such State Govt. departments. He argued that accused also misused the signed blank letter head of the complainant company which he had earlier taken on the pretext that those would be required to give acknowledgment or pre-receipts to the State Govt. while collecting orders etc and had tried to show that he had returned Rs. 36 lacs to one Sh. Shailendra Prakash i.e. representative company at Lucknow. He CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 4 of 13 argued that there was nothing on record to show that the complainant company ever directed the revisionist/accused to return Rs. 36 lacs to said Sh. Shailendra Prakash and in fact he did not return any such amount. He also referred to the statement of the complainant u/s 161 CrPC as recorded on 22.07.1998 and the statement of Sh. Sanjay Dalmia, Chairman of the complainant company i.e. DALMIA INDUSTRIES LIMITED as recorded u/s 161 CrPC on 06.04.1999. He thus argued that the revisionist/accused had an intention to cheat the complainant company i.e. DALMIA INDUSTRIES LIMITED from very beginning and for that purpose, he induced the said company to enter into an agreement and thereafter cheated the complainant company to the tune of Rs. 50 lacs by misrepresenting them that he would get them procurement orders while in fact he did not take any steps to procure any such order for the complainant company.
5 Perusal of record shows that Sh. Vishnu B Sharma, an Executive Director of the complainant company i.e. DALMIA INDUSTRIES LIMITED (in short DIL) filed a complaint dated 12.06.1998 with the SHO, PS Connaught Place regarding registration of FIR against revisionist of M/s BALABUX RAMAUTAR BAJAJ & SONS. In the said complaint, it has been mentioned that the complainant was an Executive Director in DIL dealing with Health Care Products and was also an Executive Director in an associate company namely M/s General Exports & Credits Ltd. (in short GECL). It has been mentioned in the complaint that the revisionist ran a concern with the name of M/s BALABUX RAMAUTAR BAJAJ & SONS. It has been alleged that in the month of January, 1998, the revisionist approached the complainant company through its director, Sh. Vishnu B Sharma, stating himself to be an authorized dealer of UP State Govt. and the CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 5 of 13 revisionist induced the complainant company by assuring that he had sufficient orders at hand on behalf of UP Govt. for the products in which the company was dealing with and he could give sufficient business to the company in coming three months. Revisionist asked Sh. Vishnu B Sharma, to make a proposal of both the companies and pursuant to that, proposal dated 22.01.1998 were prepared on behalf of GECL which were handed over to the revisionist and two proposals dated 23.01.1998 were also handed over to the revisionist on behalf of DIL. Pursuant to the said assurance, the complainant company entered into an Agency Agreement with the revisionist on 23.01.1998 at Delhi and the revisionist while entering into the said agreement again assured the complainant that he had been dealing with the UP State Govt. and also had some orders which would give huge profits to the complainant company. He also assured the complainant company that he had got good connections and there won't be any hindrances in getting sufficient orders. On the assurances of the revisionist, the complainant upon that inducement paid an advance amount of Rs. 25 lacs vide DD dated 28.01.1998 to the revisionist and it has specifically been alleged in the said complaint that the said advance was paid after the revisionist/accused allured the complainant company through a special request in order to meet his pocket expenses including travelling etc to enable him to procure the orders. It has been further alleged in the said complaint that further Rs. 9 lacs, Rs. 9 lacs and Rs. 7 lacs were paid to the revisionist through different DDs dated 29.01.1998 on his assurances that the said money was immediately required to procure orders over Rs. 100 crore. The complainant company through its Executive Director Sh. Vishnu B Sharma, followed up about the progress in the dealing after the payment was made in the month of January, 1998, however, the CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 6 of 13 revisionist/accused kept on giving the false assurances to the complainant that the file was in process. In the first week of April, 1998, the revisionist informed the complainant company that an order had been placed by the State Govt. on the company, the file was being processed by the State Govt for giving advance against the order, he also assured that the order will be processed within a week's time and he called a senior official of the company to Lucknow for handing over the order alongwith the advance. As per the said complaint, on the assurance of the revisionist, Sh. Vishnu B Sharma left for Lucknow, stayed at Hotel Taj, Lucknow on 06.04.1998 and on that day, he met the revisionist who assured that the matter will be decided in two or three days. On the insistence of the revisionist, the complainant Executive Director Sh. Vishnu B Sharma stayed at the said hotel till 08.04.1998, but no written order or any progress was shown by the revisionist to him and when said Sh. Vishnu B Sharma was in a hurry to leave back to Delhi, the revisionist took some duly signed blank letter head (four each of DIL and GECL) under the pretext that those were required to give acknowledgment or pre-receipts to the State Govt. department while collecting order and advance. As per the complaint, the revisionist refused to take said Sh. Vishnu B Sharma to any government office and also did not provide with any such document suggesting some dealing with the State Govt. It has specifically been alleged that no such document was in fact in existence. Again on 12.4.1998, said Sh. Vishnu B Sharma rushed to Lucknow as the revisionist assured him that the job will be done on 12.04.1998, however, he had again returned back empty handed in Delhi.
6 It has further been alleged in the said complaint that the complainant company after smelling some foul play in the matter, made enquiry from the CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 7 of 13 concerned state government departments, through other channel, however, came to know that not even the initial proposal was submitted to any such state government department, leave alone the processing for advance amount. It has been alleged that when Sh. Vishnu B Sharma contacted the revisionist through telephone, the revisionist after telephonic conversation, refused to return the money taken by him from the complainant company and also refused to return the blank letterheads. The complainant has further mentioned in the complaint that right from the very beginning, the revisionist had an intention to cheat and defraud the company's funds and had no plans to procure any order or advances for the complainant company and the entire exercise on behalf revisionist appeared to have been done with an objective of deriving personal financial benefit by misleading the complainant company and thus he cheated the complainant company to the tune of Rs. 50 Lacs.
7 The copy of the Agency Agreement dated 23.01.1998 between the complainant company (DIL) and M/s BALABUX RAMAUTAR BAJAJ & SONS (Agent) shows that it has been mentioned that the DIL had contacted the agent to help it in the procurement of order. The above said complaint dated 12.06.1998 (upon which case FIR was registered) made by one Sh. Vishnu B Sharma, Executive Director of the complainant company i.e. DALMIA INDUSTRIES LIMITED, however, specifically mentions that the accused/revisionist approached the complainant company stating himself to be an Authorized Dealer of UP State Govt., he assured them that he had sufficient orders at hand on behalf of UP Govt. and he could give sufficient business to the company in the coming three months. It is evident that there is a clear variance in this regard in the said Agency Agreement dated 23.01.1998 and the above CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 8 of 13 said complaint dated 12.06.1998.
8 It is, however, a settled law that at the time of consideration of charge the court has the power to sift and weigh the evidence although for a limited purpose for finding out whether a prima-facie case against the accused has been made out which would depend upon the facts of each case and if two views are equally possible and the court is satisfied that the evidence produced before it while giving rise to some suspicion but does not raise grave suspicion against the accused, the court will be fully within its right to discharge the accused. My views are supported by the judgments in Union of India Vs. Prafulla Kumar Samal and Anr. AIR 1979 SC 366, Sarbans Singh & Ors. Vs. State of NCT of Delhi 2005(1)JCC 255 and Dilawar Balu Khurane Vs. State of Maharashtra AIR 2002 SC 564.
9 It is thus settled law that at the stage of framing of charge, the court has only to see a prima facie case against accused and if there is a grave suspicion against accused of having committed an offence, the court will be within a right to frame the charge against him.
10 In the case in hand, the facts of the case of the complainant shows that the accused/revisionist dishonestly induced the complainant company (DIL) to enter into an agreement to procure some orders for the complainant company in exchange of which he was to get a commission and by giving false assurances took money from DIL on the pretext that the money was immediately required to procure orders over Rs. 100 crores. It was further alleged that he induced the said company to enter into an agreement and thereafter cheated the complainant company to the tune of Rs. 50 lacs by misrepresenting them that he would get them procurement orders while in fact he did not take any steps to CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 9 of 13 procure any such order for the complainant company. It has also been alleged that the revisionist never took any step or submitted any proposal to any State Govt. department and total took Rs. 50 lacs from the complainant company under pretext to meet his pocket expenses including travelling etc to enable him to procure the orders with the false assurances that the money was immediately required to procure orders. It thus shows that the revisionist had a guilty intent from the very inception to cheat the complainant company at the time of making the said agreement. It is a settled law that in order to attract the provisions of Sections 418 and 420 IPC the guilty intent, at the time of making the promise is a requirement and an essential ingredient there to and subsequent failure to fulfil the promise by itself would not attract the provisions of Section 418 or 420 IPC. My views are substantiated by the judgment of Hon'ble Supreme Court of India in case titled as M/s Medchl Chemicals & Pharma Pvt. Ltd. Vs M/s Biological E. Ltd. & Ors, JT 2000 (2) SC 426, wherein the Hon'ble Supreme Court of India has inter - alia held as under:-
10. The Complaint also alleges an offence said to have been committed under Section 420 I.P.C. which reads as below:
420. Cheating and dishonestly inducing delivery of property. - whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
11. The ingredients require to constitute an offence under Section 415 has been lucidly dealt with by this Court in the Case of Ram Jas Vs State of U.P. (1970 (2) SCC 740) wherein this Court observed as below:
CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 10 of 13"The ingredients required to constitute the offence of cheating are -
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property".
12. While Section 415 is an offence of cheating, Section 418 deals with cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect and Section 420 is cheating and dishonestly inducing delivery of property. In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient there to and subsequent failure to fulfil the promise by itself would not attract the provisions of Section 418 or 420. Mens rea is one of the essential ingredients of the offence of cheating under Section 420. As a matter of fact illustration (g) to Section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract and it is this concept which obviously has weighed with the Learned Single Judge.................................".
11 In view of the above said discussion, the fact whether the revisionist approached the complainant company or if the complainant company approached the revisionist would pale into insignificance, at this stage, as it seems from the record that prima facie the revisionist had a guilty intention to cheat the complainant company from the very inception and took Rs. 50 lacs CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 11 of 13 from the complainant company on the pretext of procuring orders etc, however, the revisionist never took any steps in that regard and thus cheated the complainant company by dishonestly inducing the complainant company to deliver to him Rs. 50 lacs vide different DDs dated 28.01.1998 and 29.01.1998. The other defence of the revisionist that he had returned Rs. 36 lacs to one Sh. Shailendra Prasad, alleged agent/broker of the complainant company at Lucknow will also not be relevant at the stage of charge because it may at best be the probable defence of the revisionist, which he can take at an appropriate stage.
12 One other argument of Ld. Counsel for revisionist was that because in the Agency Agreement dated 23.01.1998, there is an Arbitration clause, therefore, the matter is civil in nature. There is no merits in the said argument because it is well-settled principle of law that the existence of an Arbitration agreement cannot take the criminal acts out of the jurisdiction of the courts of law. My views are substantiated by the judgment of the Hon'ble Supreme Court of India in case titled as State of Orissa Vs Ujjawal Kumar, 2012 (2) SCC (Crl.) 506. It is further a settled law that the criminal prosecution would not be completely barred merely because a civil remedy is available, criminal law and civil law can run side by side and the two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. My views are substantiated by the judgments of the Hon'ble Supreme Court of India in cases titled as Trisuns Chemical Industry Vs Rajesh Agarwal, 2000 SCC (Crl.) 47 and Pratibha Rani Vs Suraj Kumar & Anr, 1985 SCC (Crl.) 180. 13 In view of the above said discussion, there is sufficient material on record and the facts of the case show that there is a prima facie case against accused CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 12 of 13 to raise a grave suspicion against him of having committed an offence u/s 420 IPC.
14 In view of the above said discussion, there is no material irregularity or illegality in the impugned order dated 08.08.2012 of the Ld. Trial court directing the framing of charge against revisionist/accused Pradeep Kumar Bajaj u/s 420 IPC.
15 Keeping in view the above said discussion, the present revision petition is dismissed being devoid of any merits.
16 The revision petition is disposed of accordingly.
17 Trial Court Record be sent back to the concerned Trial Court through Ld. CMM, New Delhi along with copy of this order.
18 Revision file be consigned to record room after completion of all other necessary formalities.
Announced in the open
Court on 31.03.2015 (AMIT BANSAL)
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS/NEW DELHI
CR No. 119/2/14 FIR No. 624/98 PS Connaught Place Pradeep Kumar Bajaj Vs State Page 13 of 13